Letter: Trengove's meltdown - Businesslive

13 March 2019 - Advocate Wim Trengove’s proposals to the ad hoc parliamentary committee charged with crafting a constitutional amendment to allow expropriation without compensation (EWC) are damaging, naive and often mistaken on the law.

Advocate Wim Trengove’s proposals to the ad hoc parliamentary committee charged with crafting a constitutional amendment to allow expropriation without compensation (EWC) are damaging, naive and often mistaken on the law. (State must focus on redistribution in the land-expropriation issue, lawyers say, March 8.)

Trengove is reported as proposing new legislation stipulating that “white” land ownership should be presumed the result of historical “privilege” – and thus liable to redistribution – unless the owner can prove otherwise. He suggests this rule be confined to farmland, leaving residential property, pensions, and other property rights untouched.

But most farmers have bought their land, many since 1994 (roughly 5% of farms change hands annually). Most farmers also plough major amounts of working capital into their land each year.

It is absurd to “presume” all white farmers have acquired their land through “privilege”. It is also naive to think this presumption would be confined to farmland, rather than more widely deployed in the ANC-SACP’s determined march towards a “socialised” economy.

Trengove also suggests redistribution can be achieved without a constitutional amendment – and without compensation being paid – provided the state does not “take possession for itself” but passes land directly to beneficiaries.

Here he misquotes the Constitutional Court’s majority judgment in the 2013 Agri SA case. Chief Justice Mogoeng Mogoeng indicated that the state’s acquisition of “ownership” (not “possession”) is the hallmark of expropriation. Mogoeng thus found the state’s “assumption of custodianship” over an unused coal-mining right did not amount to expropriation.

Mogoeng also made it clear he was dealing solely with the facts before him – not laying down a general rule, as Trengove assumes. Three judges in the case cautioned against any such rule. Two also warned that Mogoeng’s approach was inconsistent with international law and could lead to the uncompensated “abolition” of private property rights.

Trengove overlooks the massive failure rate (at least 70%) of land-reform projects, the low demand for farmland among rapidly urbanising black South Africans, and the upsurge in poverty and hunger that followed land redistribution in Zimbabwe and Venezuela. Triggering an equivalent economic meltdown in SA will do nothing to overcome past injustice.